Lots and lots of commentators seem to be confused about Northern Ireland. No surprise there. The confusion seems to be around the post Brexit space. Again, no surprise there, its a mess wrapped in a confusion inside a conundrum. But, let’s parse it. The problem is what to do with the border when it is no longer internal but becomes an external EU frontier. There are four layers to the relationship. All are, in principle, separable. These are
- The common travel area between the UK and Ireland
- The existence of freedom of movement to work between UK and Ireland
- UK and Ireland being in a Free Trade Area
- UK and Ireland being in a customs union.
At various times over the last century each and every one of these has been abrogated, ceded, suspended or modified. Lets parse them
The common travel area is a visa-free mini-schengen. It is merely about allowing travel of persons. It has nothing to do with work, goods or services. Depending on the flight and air/port one can find oneself waved through and bypassing the UK border or have to go through it via immigration. The latter was the case for the vast majority of travellers regardless of port of departure during the height of the troubles. So an Irish Sea people border already exists. A good discussion on the legal underpinning this is here . This common travel area is what most people think of when they talk about “freedom of movement” across the border.
The issue of freedom of UK and Irish citizens to live and work in each other’s state is more complex. It is in essence enshrined in the UK law via the 1949 Ireland Act which states in effect that Irish citizens are not considered “foreign” in UK terms. This allows for Irish and UK citizens to be treated alike in the UK, for work and benefits. Now there is absolutely nothing to stop the UK government changing this. And it is not clear that the 1949 Act post brexit does copperfasten. The Irish analogue is the Aliens Act 1935 and subsequent amendments. Both of these were superseded by the Freedom of movement provisions of the EU. Again, there is nothing to stop the “common travel area” remaining and this set of provisions going post brexit. And these say nothing about trade in goods and services.
Then we get to the Free Trade and the Customs Union issues.
A free trade area is not a customs union but is a requirement for one. A good explainer on the distinction is here; Free trade is what it says but a CU imposes common external tariffs on third countries (not subject to the FTA). Kevin O’Rourke has explained quite clearly here why. It is an absolute impossibility to have Northern Ireland in the UK internal free trade and customs union, the UK outside the EU free trade and customs union and also have Northern Ireland in the EU free trade and customs union. That would expose both entities- the EU and the UK – to massive smuggling. So the only way to avoid THAT is to have some form of controls on goods and services at the external border. Now, whether that is a hard border or not is to some extent definitional. But a border there must be. There was a customs border in Ireland for decades we forget. These vanished only with the creation of the EU single market in 1993. A good discussion of its impact is here
It is entirely possible to have the existing common travel area maintained and to have persons crossing freely. It is conceivable to have the reciprocal work and residence arrangements maintained. It is utter fantasy, and outright lies to pretend that if the UK leaves the Customs Union there will not be checks.